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Does My Employer Have To Give Me A Lunch Break? Best Lawyer Reply

| Jan 14, 2015 | minimum wage violation, overtime time violation |

Best Ohio Overtime Attorney Answer: Can my employer deny me break time? Can my boss deny me a lunch break? What counts as “off the clock” work? How do I get paid if my paycheck is short?

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As the employment attorney of the family, I am often asked by my relatives about whether what is happening at their job is legal. Recently, I was asked – no, told, by my mother-in-law that her employer was breaking the law because she and her co-workers were not always getting their full lunch breaks or other rest breaks throughout the day. She insisted that because she worked four hours and wasn’t given a break, her employer had broken the law.

While it is true that intermittent breaks can help make employees more productive, there is no law that requires employers to give employees a lunch break or a rest break. Typically, these breaks are given (1) because employers recognize that hungry/tired employees don’t perform well and (2) to avoid having to pay employees overtime.

I am working through lunch but my company is not paying me. Call attorney Brian Spitz and the overtime wage attorneys at The Spitz Law Firm for a free initial consultation on your FLSA wage rights.

Unsurprisingly, it is the overtime issue that most likely has your employer insisting you take your lunch breaks and other breaks. If you skip breaks or work through lunch and aren’t paid for your time, your employer will be liable for violations of Ohio’s wage and hour laws and a federal law known as the Fair Labor Standards Act (“FLSA”) . And, if this time causes you to work more than 40 hours in a given week, your employer must pay you overtime for it. Thus, while your employer does not have to give you a break, it must pay you for all hours worked.

Ohio law and the FLSA make any “off the clock” time illegal for hourly workers. Off the clock time can be nearly any activity performed for the benefit of the employer without compensation. Examples of off the clock work include:

  • Taking phone calls from work when you are not on the clock;
  • Checking work related emails when not on the clock;
  • Being required to attend pre-shift meetings without pay;
  • Starting up computers or other equipment before the start of your shift without pay;
  • Clocking out to lock up or do other store closing work;
  • Being required to clock out to run work related errands (such as picking up supplies or equipment);
  • Being required to change in and out of uniforms at work (“donning and doffing”);
  • Working through an unpaid lunch break or rest break;
  • Being required to wait in line before checking in equipment at the end of the day.

Let’s look at an overtime wage lawsuit as an example. In Long v. Alorica, Plaintiff Carol Long worked as a Customer Service Representative (CSR) for the defendant, Ryla Teleservices, Inc. Long’s rate of pay was $10.00 per hour. According to her wage and hour complaint, Carol worked off-the-clock “completing research on Verizon customer cases” and “reading company e-mails containing updates on Verizon products and services … before her shift began and during her uncompensated meal break” but was not paid at all for this overtime work. While Carol would be doing the overtime work, her bosses allegedly asked he whether she was working and clocked in. When Carol told her managers that she was indeed working but was not clocked-in, those supervisors would say “great” or “oh, good.” After Carol’s shift was over and she clocked out, she then had to spend about 15 minutes “logging off of the system, taking customer documents to the shredder.” CSR moved the court for summary judgment, which means dismissing the case as a matter of law before it even gets to a jury. But, United States District Court, S.D. Alabama denied the motion and found in favor of Carol:

The FLSA requires that employers pay covered employees a statutory minimum wage for each hour worked. 29 U.S.C. § 206(a). Employers must also pay covered employees a rate of one and a half times their usual hourly rate of pay for each hour in excess of forty hours worked in a week. 29 U.S.C. § 207(a). Therefore, “[u]nder the FLSA, an employer may not employ his employee for a workweek longer than forty hours unless his employee receives overtime compensation at a rate not less than one and a half times his regular rate.” Allen v. Board of Public Educ. for Bibb County, 495 F.3d 1306, 1314 (11th Cir. 2007); 29 U.S.C. § 207(a)(1). “A person is employed if he or she is suffered or permitted to work.” Id.; 29 U.S.C. § 203(g). “It is not relevant that the employer did not ask the employee to do the work. The reason that the employee performed the work is also not relevant. `[I]f the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted.’” Id., (quoting Reich v. Dep’t of Conservation and Nat. Res., 28 F.3d 1076, 1082 (11th Cir.1994) (citing 29 C.F.R. § 785.11)). “It is the employer’s duty to keep records of the employee’s wages, hours, and other conditions and practices of employment. . . . The employer is in a superior position to know and produce the most probative facts concerning the nature and amount of work performed and `[e]mployees seldom keep such records themselves.’” Id., at 1315. …

[I]n an FLSA action, an employee need not support their testimony with time records or other documentation. See Allen, 495 F. 3d at 1316, 1317-1318 (addressing plaintiffs’ argument that the supervisors frequently told them they would not be compensated for overtime and told them not to report overtime and finding that “the Board was not entitled to summary judgment based on Plaintiff’s lack of documentation and inability to state with precision the number of uncompensated hours they worked and the days on which that work was performed.”); Barreto v. Davie Marketplace, LLC, 331 Fed. Appx. 672, 677 (11th Cir. 2009) (finding that the “plaintiff’s deposition testimony created genuine issues material fact concerning his job duties” and that summary judgment was not appropriate). Thus, by way of her testimony and interrogatory responses, and Nelson’s declaration, Long has produced “sufficient evidence” from which a reasonable inference could be drawn in support of Long’s allegations that she worked off-the-clock and Alorica had knowledge of that work. Allen, at 1318. Moreover, Alorica has provided the declarations of Kramer, Salaam, and Tuck-Diop, and drawing all reasonable inferences therefrom, the declarations are sufficient to create a genuine dispute of material fact as to whether Long’s supervisors had knowledge and whether the amount of time Long alleges that she worked off-the-clock was de minimis.

If you are doing any of the above activities (and the above list is far from exhaustive) without being clocked in, your employer owes you wages for the time you spent doing this work. If being on the clock while performing these activities would have caused you to record more than 40 hours in a given week, then your employer owes you overtime.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.